January 24, 2006

Alito: Designer of Our Return to Monarchy

by Edward_

I was thinking today as I read an anti-Roe advertisement in the Times that the battle over abortion is like the war against drugs...a farcical bit of theater that does very little to address the supposed moral issues involved and ultimately only serves to punish the poor. As this connection became clearer to me, I realized that I have been totally off-base about what I had assumed was the true danger behind Alito being confirmed for SCOTUS. Circuses like "the war on drugs" and abortion battles don't occupy the minds of the most powerful people in the world, not once the cameras are turned off anyway. And despite his rallying cry to the anti-Roe crowds that they "will prevail," it struck me that Bush's keen interest in Alito has nothing to do with whether or not only those who can afford a plane ticket to New York or Europe (if it comes to that) will be able to get an abortion in this country. It couldn't.

So what then? What was driving his support for this choice that he knows will further divide the nation? I had no idea.

Andrew Sullivan has some idea, however. In a column outlining the extraordinary use of "signing statements" by President Bush ("In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105. [...] In five years, President Bush has already challenged up to 500 provisions...."), he illustrates why Bush has never bothered to veto a single bill during his presidency. He doesn't need to:

But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

But here's the kicker:

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea--which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President's view is utterly irrelevant.

Or at least it used to be that way. Through his systematic use of signing statements, Bush has attempted to effectively elevate himself about the law of the land. That cannot be overstated. Bush has attempted to elevate himself above the law of the land, and in doing so, by extension, above the will of the people. In other words, he has for all intents and purposes given himself wide monarchial powers.

And then, of course, the whole Harriet thing begins to make sense. Knowing that such a practice might land him in hot water in the courts one day, who better to put on the bench than his own personal pitbull? When that didn't quite fly then, however, he had an even better idea. Put the man who found this loophole in democracy on the bench. Anxious yet? Try this:

Alito, of course, didn't foresee the war on terrorism. But put a war President's power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.

So now, we have a war without end, a loophole through any law, and a President not even remotely shy about exploiting either:

As Graham shows, this isn't a Republican-Democrat issue. It's a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It's disturbing to think we may now be quietly installing a second one.

It's time to curb this fella's power-grab, folks. Seriously...it's well past time.

If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn't object on First Amendment grounds?

Personally, I certainly wouldn't vote for it, but I don't see why it would run afoul of the 1st Amendment. You're saying that a law's constitutionality should depend on the religious motivation of the legislators who passed it rather than on the facts of the bill itself? So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it's controlled by Hindus, they can't?

Gary Farber: Yes, I wasn't actually trying to speak in an obscure code when I wrote: "I'm not 100% sure if you're referring to slaves, but certainly there was a large degree of Christianity amongst them, as well."

Which sounded to my ears like an invitation to make myself 100% clear that I WAS talking about the slaves. Yeesh.

But one might say with equal accuracy that "It just makes it a religious cause for which there are also secular arguments."

Sure. As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws.

kenB: So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it's controlled by Hindus, they can't?

I'm not a lawyer, I should note, but I would think that the Hindus simply need to articulate a compelling reason for doing so beyond the fact that the consumption of beef violates their religious principles. I don't see what is so onerous about this. If writing religious principles into law for no other reason than to force nonbelievers to behave as if they were pious doesn't run afoul of the establishment clause, then what does?

I find the idea of, apparently, feeling some need to diminish the considerably religious nature of the abolitionist movement a bit peculiar.

Were I the snarky type, this would be the point where I would write something like:

I wasn't actually trying to speak in an obscure code when I wrote: "And none of this is to denigrate the contribution of Christianity to abolitionism. "

"Setting aside the fact that this had no apparent relation to what I was talking to you about for the tme being, who, pray tell, are you arguing against with that statement?"

I was discussing the idea that Hilzoy raised (Jan 29 at 11:06 am and 3:13 pm). You came into the middle of that conversation and I assumed you were adding to it. If you were making a point about the religious origins or non-origins of the abolitionist movement purely outside that context I apologize for putting your words in the wrong context.

"If someone were to introduce a law tomorrow banning cotton/polyester garments, citing only their faith in support of the law, are you saying you wouldn't object on First Amendment grounds?"

No. I would say it is a really stupid law and ask my representatives to vote against it. The Constitution doesn't protect against all forms of stupidity. The First Amendment isn't about not letting religious people have a democratic say on things.

Ken's response and hypothetical encapsulates my thoughts precisely:

You're saying that a law's constitutionality should depend on the religious motivation of the legislators who passed it rather than on the facts of the bill itself? So if, say, Congress is controlled by ethical vegetarians, they can pass a bill outlawing the consumption of beef, but if it's controlled by Hindus, they can't?

People obtain their moral understanding lots of different ways. I believe that there is a correct morality. I'm not a moral relativist and I doubt very many people really are. But the tricky part is that we don't all agree on the exact contours of correct morality. Procedurally the Constitution allows for people to get their differing views of morality from all sorts of places and try to enact them with votes in the legislatures of the nation. Trying to second guess that on the basis that some people are getting their moral values from the wrong source (religion) is likely to be very dangerous in a multicultural society.

That is where the slavery issue came up. It may very well be that abolishing slavery looks like a "secular purpose" to us in retrospective. For most people at the time it tended to be a religious purpose. Historically some of the big and important changes have come from an explicitly religious context.

I also resist the idea that "secular purpose" vs. "religious purpose" is a particularly good sorting mechanism for laws with moral purposes (which is to say quite a few of them). It is proper to pass laws with a moral purpose. People get their ideas on moral purposes from lots of places--a huge percentage of them religious. The First Amendment isn't meant to exclude the moral ideas of people who get their moral ideas from religion.

Let's look at a secular purpose law. For simplicity I'm going to oversimplify the actual law:

Children under the age of 15 shall not work.

I presume we can all agree that this is a law with a secular purpose. What is it?

That it is wrong for children to work? Where do you get that idea of wrong?

That it would be better for the nation if children enjoyed their childhood? Where do you get the idea "better for nation" and how do you judge it? Why are valuing childhood?

That it would be better for the nation if children could focus on studying in school? Why are we valuing studying? Good parents will make their children study, and those with bad parents will be part of the underclass. On what basis do you say that is a bad thing? What is "better for the nation"? Perhaps better for the nation would include an underclass to do scut work.

Who said that utilitarian arguments were the right way to analyze things anyway?

The problem is that even 'secular' laws have a moral purpose which is grounded at a level which is not easily explained to those who don't share it. I see no good reason to automatically exclude the moral purposes grounded in religion. I'll argue against them. I might say they are bad (appealing to some other more 'basic' understanding of morality). I might say they don't maximize happiness (appealing to a utilitarian ethic). I might say all sorts of things because I really do believe in an objective morality. But procedurally I don't think it is right to exclude religious understandings of morality from the discussion. Lots of law come down to: "That is just wrong and we should do something about". The "that is just wrong" part is generally no more defensible (in a purely logical sense) when made by non-religious people than it is by religious people.

My moral intuition says certain things. Other people's moral intuition says other things. I'm convinced I'm right. So are they. Procedurally our government lets all of us speak and vote. That doesn't disprove the idea of right and wrong. It merely recognizes that in the current human world there are disagreements about it. In a democratic country you have to be convincing--but the Constitution doesn't say that you can't be convincing by appealing to religion. And I'm pretty sure that the Constitution shouldn't say that.

If writing religious principles into law for no other reason than to force nonbelievers to behave as if they were pious doesn't run afoul of the establishment clause, then what does?

Perhaps if it could really be shown that a given law had *no other purpose* than forcing non-believers to act more like believers, there could be a 1st amendment issue. But My sense is that believers generally interpret these religious principles you mention as independent moral values, rather than only as part of a package that serves the goal of greater piety. The fundamentalist who wants to outlaw birth control is quite possibly not thinking to himself, "while the use of birth control in and of itself doesn't much matter to me, passing this law is another step on the road to making everyone better Christians"; I'd suspect the thought is more like "using birth control is wrong".

It happens so rarely I thought I'd say it--I'm in whole-hearted agreement with Sebastian. In particular, his 5:58 post.
I was thinking of typing something along similar lines, but he did it better and so I'm free to use the elliptical machine instead.

Sebastian Holsclaw: I see no good reason to automatically exclude the moral purposes grounded in religion.

...

The First Amendment isn't meant to exclude the moral ideas of people who get their moral ideas from religion.

Who is arguing for this position?

I presume we can all agree that this is a law with a secular purpose.

You could have stopped there. If it has a compelling secular purpose, it doesn't run afoul of the establishment clause in my book, regardless of the motivation of its supporters. What do I care about their motivations?

Contrast this with blue laws. What compelling purpose do they have beyond attempting to force people who would choose otherwise to observe the sabbath?

Sorry to be absent; today was the first day of school, and all that that entails.

If I had to clarify my view (which is tentative, and I take the fact that when last heard from I was disagreeing with Katherine to show that I am out of my depth), I'd say:

I did, in fact, mean that laws with no plausible justification outside religion are an establishment of religion. It's not about the actual religious beliefs of those laws' supporters; it's about the availability of a plausible non-religious justification. I take one to exist for laws banning slavery, but not for laws banning early abortions. As long as such a justification does exist, then (according to me) it's OK, if it passes the legislature. It's not, as far as I'm concerned, as if the existence of a religious prohibition on murder, in many religions, makes laws against murder suspect.

(Thus, to Niels: No, I do not think all people who are pro-life are religious. Just those with plausible justifications for their views.)

About utilitarianism: I am not myself a utilitarian. I tend to the view that while any moral theory worth anything will take consequences into account in some ways (and the idea that Kant's does not is a damnable calumny, albeit one that Kant himself could have done more to counter), utilitarianism as a personal moral philosophy is wrong, and even somewhat perverse. (Don't ask why.)

However, I'm a lot less troubled by the idea of using utilitarian (or, more generally, consequentialist) considerations as a basis for public policy. Public policy is not about deciding what values I will place at the heart of my life. It's about trying to come up with policies that allow us all to live better lives.

Some parts of 'living better lives' are not, according to me, consequentialist. But these are (often) just the parts that the law wouldn't govern anyways. (Some concern my character construed too narrowly for the law to govern -- e.g., whether I am conscientious, or courageous, or whatever), and some concern the use I make of the freedom I have, which it is (according to me) one of the functions of law and policy both to safeguard and to maximize (in general) (where that means: law and policy should aim to set up a system in which people will, generally, have as much freedom as possible, and will never be subjected to certain sorts of injustice, it being understood that law and policy are not well-suited to the godlike work of making this work out in every instance; just to putting the best framework in place.)

If you get the division of labor right -- society ought to work to ensure that citizens have, other things equal, as much freedom as possible (and what this means is a whole other topic in itself) -- then within certain limits (e.g., no slavery), law and policy should be designed on the (consequentialist) grounds that they actually achieve those results, while what each of us decides to make of his or her freedom is a question best left to each of us, and need not be answered in a consequentialist way.

That said, this is just my stab at a plausible justification of some policies. All my original argument said was: where no such justification for a law can be found outside a given religion, then that law should be regarded as essentially religious.

(I could be convinced to add: at least, this is true when that law deprives someone of some significant good, e.g. liberty. As is the case with laws prohibiting early abortions.) (This would, of course, rely on the separate claim that there is no non-religious reason to take early (pre-sentient, pre-conscious) human embryos to be "someone", for these purposes.)

Note: I think this point about 'human life' is worth some serious consideration: it is not true that we do not, in any sense, kill innocent human beings outside war. Consider organ donors: they are brain dead, and (legally) have to be. However, their bodies are kept "alive", so that their organs can be harvested without having first started to decay.

I have no problem with this: I think that when I am brain dead, there is no more "me" around. My body is still there, but I am gone. By the same token, though, I have no problem with aborting pre-sentient, pre-conscious, pre-any-mental-anything embryos. If organ donors are brain-dead, then they are 'not yet brain-alive'.

Why people who are pro-life accept organ donation (in cases in which the -- person? body? -- is kept alive artificially -- e.g., it is oxygenated, its blood is kept flowing, etc. -- I don't know. After all, they would seem to be committed to the claim that "human life" does not depend on the existence of any sort of functioning brain, so why accept brain death? Why isn't it the case that when you keep the body alive and then harvest its organs, you are carving up (and thus directly killing) a living human being?

(I don't think consent is a good answer here: we don't normally think that someone has a right to kill someone else even with that person's consent, and if doctors regularly killed willing non-brain-dead people for e.g. experimental purposes, we would rightly be appalled.)

Sebastian's question is good (though not, I think, unanswerable), but I'll save it for later, after I eat something ;)

"Thus, to Niels: No, I do not think all people who are pro-life are religious. Just those with plausible justifications for their views.)"

Here I assume you mean "conception-at-birth" pro-lifers. I think I can imagine secular pre-viability arguments for more onerous abortion restrictions than the current framework allows, and certainly secular arguments post-viability. [E.g., Let's not kill the sick violinist on the "two-crimes-don't-make-a-right" principle, so a viable fetus should be 100% human, so a just-pre-viable fetus should be 90% human requiring a strict weighing of rights, etc., sorites paradox, blah blah blah.]

"And the filibuster goes down in flames, with only 25 votes against cloture."

Since it's over, maybe I can now say some things, without being in danger of discouraging anyone and being a killjoy Hurting The Cause.

How anyone could possibly have expected otherwise, I can't begin to imagine. I can only conclude that they either have no grasp of how to count votes, or live in a land where wishes and ponies are granted to all.

My actually opinions can be found hidden in the off-topic comments here. Warning: they are quite harsh towards pro-filibuster supporters. Sorry; it's what I think.

"And if they fail to, then the law is unconstitutional? Or is it up to a judge to determine if there's a non-religious justification for the law, regardless of whether the legislators articulated one?"

That's my understanding of how the First Amendment works. Congress shall make no law respecting an establishment of religion. Definitionally, if a law has no secular purpose....

For the record, incidentally, see, I see what you said as amusing and utterly inoffensive.

My calibration on snark is, I'm afraid -- and I learned this decades ago, and still haven't been able to do nearly as much about it as I'd like, although believe me, I've done a lot about it over the past couple of decades -- considerably different and higher than that of most people. It's unfortunate; really. It's a problem for me. (Maybe I should form Snark Anonymous, or Sarcasm Anonymous.)

I blame my family upbringing and imprinting, and I mean that with the utmost seriousness. All I can say is that I'm a lot better than I used to be.

"As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws."

It should be obvious from my other comment that I entirely agree. But just agreeing to be agreeable.

I don't see this as in the least contradictory with anything Sebastian has said, none of which I've yet noted anything I disagree with, although he may have a different view.

I take the secular purpose test to mean: you need something other than a sheer appeal to authority. Something more than "God says so". If there's a secular purpose, even if your motives are religious you ought to be able to explain your moral beliefs in some terms other than "God says so" or "the pope says so" or "it's in the bible" or "the flying spaghetti monster says so." I'm with hilzoy as far as that goes.

But I think opposition to abortion passes this test--not quite with the flying colors that opposition to slavery does, but I think it passes it nonetheless. I don't think it's especially close. I don't think judges should evaluate the rationality of Congress' laws like they're philosophy professors graduating the work that freshmen turn in. This is a democracy. Even the very best Justices are fallible, and we have plenty who aren't very good at all. There needs to be a certain amount of humility.

Gary Farber: My calibration on snark is, I'm afraid -- and I learned this decades ago, and still haven't been able to do nearly as much about it as I'd like, although believe me, I've done a lot about it over the past couple of decades -- considerably different and higher than that of most people. It's unfortunate; really. It's a problem for me. (Maybe I should form Snark Anonymous, or Sarcasm Anonymous.)

Sign me up, Gary.

New topic: Is the Intel Macintosh a heresy against God?

Five years ago it would have been. Today, I welcome it with open arms. Or I will when the towers are released, hopefully later this year. Though I am still very glad the new machines don't sport the "Intel Inside" logo.

"As opposed to a religious cause for which there are no compelling secular arguments. Such as, IMO, bans on sodomy, or blue laws."

But what is "no compelling secular argument"?

Preface for those who haven't followed forever: I'm gay. My next comment about sodomy IN NO WAY REFLECTS MY ACTUAL THOUGHTS ON THE MATTER.

A person who believed that homosexuality was wrong could argue for a law against sodomy. He could do stump speeches about it. He could be elected solely on his opposition to it. He could throw in something like: sodomy greatly increases the risk for transmission of many horrible diseases and besides it is really gross. The law would probably be unconstitutional in lots of potential ways: not interstate commerce, perhaps a violation of some privacy right, maybe something else. I don't think it would be a violation of the first amendment. The secular purpose is really stupid. Even if I accept that a law with absolutely zero secular purpose would be unconstitutional, in the reality of the US, any proposed law is going to have some tenuous secular purpose. But if we let judges try to second guess the real reason behind people's moral intuitions and beliefs we are really causing a troublesome area of litigation. The nearest similar concept might be impermissable racial discrimination on laws that are race-neutral on the face. Every now and then courts are willing to rule against such a law if there is direct evidence of racially discriminatory intention behind the law. But they are very hesitant to go into that kind of second guessing--rightly so.

I think you could argue a secular purpose for almost any law--including blue laws (people need rest from work and if we don't mandate a day that everything is closed some people might get two jobs and work schedules such that they never get any full day of rest). Lots of the secular purposes will be stupid, but I don't think judges should get involved in that.

And that is only if you accept the "secular purpose" concept at all. I'm not convinced that moral intuitions apart from religion ought to be valued above moral intuitions from religion. (Note that is NOT to say that they are of lesser value). Both intersect deeply with personal experience and understanding. Trying to divorce it from that seems impossible to me. (The funny thing is that I really do believe that there are 'right' answers to moral questions. I just believe that our objective understanding of that real morality is so confused and imprecise that privileging all non-religious intuitions over all religious intuitions doesn't make sense.)

I have a question, partly a leading question but partly a genuine legal/constitutional question: if Congress passed a law that had no discernable purpose whatsoever, would that be constitutional? What about a law that was tied to a congressional majority's eccentric opinion but wasn't connected to any religion [e.g. the ethical vegetarian congress's anti-beef legislation]? What about a law that, however coincidently, exactly matched a religious stricture even though none of the congresspeople have any conceivable ties to that religion?

"if Congress passed a law that had no discernable purpose whatsoever, would that be constitutional?"

Why not? Well, if someone attempted to "enforce" it, I suppose it could be struck down for being unconstitutionally vague. But I suspect a question so hypothetical isn't a useful question.

"What about a law that was tied to a congressional majority's eccentric opinion but wasn't connected to any religion [e.g. the ethical vegetarian congress's anti-beef legislation]?"

To be unconstitutional, it would have to demonstratably violate some precedential understanding of the Constitution. IANAL, but I think that kinda covers it, though we really want to hear from one of our lawyers here, not me.

"What about a law that, however coincidently, exactly matched a religious stricture even though none of the congresspeople have any conceivable ties to that religion?"

See above Lemon. Gotta demonstrate that secular purpose, and the modified three prongs.

if someone attempted to "enforce" it, I suppose it could be struck down for being unconstitutionally vague. But I suspect a question so hypothetical isn't a useful question.

Wouldn't have to be vague, just unmotivated.

But my real question is, assuming that, in fact, laws with a solely religious purpose are unconstitutional while laws with a non-religious but idiosyncratic purpose, or no purpose at all, are constitutional: is this a desirable state of affairs? Is there a principled defense for the deprecation of religious purpose below all others?

I'm often struck by the special place that religion is afforded, or relegated to, in our society. People can have plenty of strong non-religious beliefs that are no more rationally based than many religious views. Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?

Interesting thread. Though going back to one of the first grains of sand around which the pearl was formed, arguing from the notion that the cause of abolition was deeply Christian is a bit of an assymetry. As Prodigal notes, the South's cause was also deeply Christian and a huge amount of effort went into justifying slavery as bibically based. In fact, given that the notion of a geographic Bible Belt is not linked to the states that historically supported abolition, one could argue over which states were more 'Christian'. Also, the Christianity of the abolition movement was very much a log/mote conundrum. For example, I believe that many of the non slave holding states had the notion of 'black codes' which appear to be anti-immigrationist, but were really created to prevent black freemen from settling in their states. And the abolition fervor of the English was also curiously timed to the point where the slave trade was no longer as profitable as it had been because slaves had become a large enough population to not need new slaves brought in.

Now, it is possible to adduce a range of reasons from either secular or religious motivation for some given piece of legislation. However, religious reasoning has a dangerous trump card, which is claiming that it is because God said this. Thus, when kenb asks

Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?

The reason is that for some, because God said so is much more powerful than any other reason, and for others, it is a red flag that suggests that the opposing side no longer can argue the case. I do think there is an important aspect to bringing moral ideas into legislation, cf. the recent attempts to deal with Alabama's tax system, and that they can be framed by Christian ideals is important. However, there are far too many unscrupulous people using Christian ideals as a vehicle to get their view supported rather than examining how Christian ideals are, if taken seriously, often very corrosive to the ideals of the status quo.

When I was in Germany, people there were debating their version of blue laws, which are much more annoying and stringent than anywhere I've ever been in the US: pretty much everywhere but restaurants and the train stations are shut down (it's not about alcohol there). It was largely the communitarian socialists who were defending the practice--and always on non-religious grounds. Or, perhaps, not explicitly religious grounds, or grounds not clearly tied to any specific religious platform. I do appreciate Sebastian's point about how moral convictions (like "young children shouldn't have to work") can occupy a gray zone between tenet, value, and whatever arises in the triangulation of harms, justice, and social order in more utilitarian logic.

You came into the middle of that conversation and I assumed you were adding to it.

I was. Your arguments seemed to imply that being deeply Christian would equate to being opposed to slavery, and I was arguing that this is not the case, based on those in the South whose own deeply Christian beliefs led them to find justifications for slavery in scripture.

If that wasn't what you meant, I spologise for my inference. But either way, the reply you posted after the text you quoted from me bore no direct relation to it that I could find.

"Is there a principled defense for the deprecation of religious purpose below all others?"

Yes. It's called "the establishment clause" of the First Amendment. If you try googling a bit, there's no shortage of information about it on the web you can use to educate yourself.

"Change that 'why does' in my last sentence to "why should" -- I know that the pragmatic reason is the establishment clause."

And "Why does the belief all of a sudden lose legitimacy, or gain protection, just because it gets attached to a divinity?"

Ah. I'm afraid that I'd still go with the above answer. The First Amendment is as much idealistic as it is pragmatic. It's a floor wax and a desert topic.

This is because religion was historically of great importance to many of of the founders of various colonies which in many cases were founded purely as an exercise in religous exile, in some cases rather involuntarily, in others more or less quite voluntarily. Religion, of course, was of widespread, although hardly universal, importance to many in the 16th, 17th, and 18th Centuries, although the Enlightenment also produced a great flowering of different views.

I'm stating stuff that is rather third-grade obvious, but I'm afraid I'm not understanding your question as, well, calling for a different answer. This may simply be a failure of my own understanding of what it is you are asking or saying, in which case I apologize in advance.

LJ, for what it's worth, from my reading churches didn't really actively engage in defending slavery until around 1840 or so, when the abolitionist movement had really started to gain steam. There's a shameful history of making do with the political reality before then, of course, and a few fanatical outliers will always be found, but from what little I've read on the subject, Northern churches were much more consistently political on slavery, and Southern churches became so rather late and in reaction. (Caveat: not my field.)

Katherine: even if your motives are religious you ought to be able to explain your moral beliefs in some terms other than "God says so" or "the pope says so" or "it's in the bible" or "the flying spaghetti monster says so." I'm with hilzoy as far as that goes.

Sheesh, that one's easy. "I'm with hilzoy as far as that goes" obviously trumps God, the pope, the bible, and even the flying spaghetti monster as moral justification. This is The Congregation Of Obsidian Wings, you know!

.............

My only other comment on this fascinating thread, in the spirit of comity and paradox, is that I find myself almost entirely in agreement with Sebastian H! I'm not sure whether to regard this as a lucky fluke, or to consider it an auspicious sign for the new year (Year of the Dog, though that's not me - I'm a Sheep/Ram/Goat [the Chinese being not into making sharp ovine/caprine distinctions]). At any rate, it's rare enough to be worth notice, I felt.

JM, that's a good point, but certainly it speaks to the problems of discussing a 'religious' component to legislation. Not my field as well, but I think there has been a consistent thread of 'pre adamite' argumentation which began as contra to Christianity during the Enlightenment, but then was repurposed to justify the different treatment of races within the bible. Also, the 'curse of Ham' was also taken to provide earlier justifications for slavery and servitude. As for timing, certainly the early opposition to slavery by Quakers, and English Baptists and Methodists was important, but it came in two waves, the first was to outlaw slave trading (in the late 1700's) and the second to outlaw slave-holding that began in the 1830's. Outlawing slave-trading did not demand a theological response, but outlawing slave holding did, I think.

I'd also note that the Southern Baptist Convention, which split from the national body in 1845 precisely because of the question of slavery, in 1995 offered an apology. One could argue that this is not 'Christian', but it seems to me that the Baptist faith would stand as a basic definition of what is invoked when 'Christian' is mentioned in the context of current US politics.

Also interesting (and a bit frightening) is this link which discusses the notion that the Civil war was a theological war.

i'm seeing the next remake of that Jimmy Stewart movie about the plane crash in the desert where, instead of rebuilding the plane the passengers, who all happen to be con. law professors, debate the use of the Establishment Clause as a fuel additive until they all die of thirst.

"IANAL, but I'm reasonably sure that the need to demonstrate a "secular purpose" is a longstanding SCOTUS precedent, Sebastian. The "Lemon Test," as I recall."

Gary, I'm not at all sure that Lemon applies easily to laws passed with a moral purpose grounded in religion. I guess it isn't obvious to me that passing a law on some moral basis which you derived from your religious beliefs counts as "respecting an establishment of religion". (Remember to use 'establishment' in the 18th century meaning. It is probably more like "an establishment of drinking" than we would normally use it.)

Lemon and most of its progeny tend to be about actual financial support to a religious institution.

dr_ngo, Happy New Year. I'll try not to make a habit of saying things you agree with. It can be disturbing. ;)

Oops, sorry Katherine, I thought about your question, but that isn't the same as writing an answer. I don't have a problem with the recent creation science cases. They basically involve teaching religion, which is more under the rubric of "respecting an establishment of religion" than a lot of the stuff we have been talking about here.

Still stuck on divine command theory and Euthyphro - is it actually logically possible to base a value system on a religious text, except insofar as it's not religious? Far as that's concerned, I still don't think there's a rational way to construct a value system.

Off to write an app that will automatically interject the above comment (with variation) into these sorts of discussion.

I was thinking as I wrote it that I probably wasn't making my question clear. I wasn't asking for a legal answer or a historical explanation -- I guess one way to put it is, if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include? Can someone defend the concept that a law with only a religious purpose should be forbidden whereas a law that was written Mad-Lib style, or one that codifies a peculiar non-religious belief should be allowed?

I guess one way to put it is, if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include?

As someone on my friends-list on livejournal once remarked, the problem with democracy in the US is that you're stuck with the beta version.

The Founders came from a country with an Established Church, where the head of state is also the head of the church: their concerns about freedom of religion were expressed in terms of an established church. It seems reasonable to me to argue that this Amendment is in principle an argument for freedom of religion.

Conversely, in the UK, where the presence of an established church is taken for granted, and Christianity is (still) legally privileged over other religions, the discussion is whether to legally disprivilege Christianity / remove the special status of the Church of England, or to attempt to provide other faiths with equivalent privileges, and representatives of other faiths with the privileges that C of E bishops and archbishops have. To my mind, the former solution, being simplest, is best: but the matter is still not resolved, and I can't say when it will be.

On the other hand, Douglas Adams noted in an interview with an atheist society in the US, it seems that being irreligious - atheist, agnostic, or MYOB - is more tolerated in the UK than in the US.

kenB: Can someone defend the concept that a law with only a religious purpose should be forbidden whereas a law that was written Mad-Lib style, or one that codifies a peculiar non-religious belief should be allowed?

Does the Mad-Lib in question threaten those who don't heed its will with eternal damnation or possibly earthly suffering? Do the people look to this Mad-Lib to bless the nation with good fortune, victory over its enemies, or even just rain for the crops this year? Is the Mad-Lib seen as infallible, or infinitely wise in its judgment?

Gromit, I don't understand your response. If the mad-lib law happened to prevent you from wearing clothes with mixed fabrics, you wouldn't have a problem with that, but if that rule is instead based on a bible passage, it becomes horribly objectionable?

Sebastian Holsclaw: I don't have a problem with the recent creation science cases. They basically involve teaching religion, which is more under the rubric of "respecting an establishment of religion" than a lot of the stuff we have been talking about here.

Why is this not deprecating religious moral intuition? Isn't religious instruction a moral duty according to the faith in question?

kenB: Gromit, I don't understand your response. If the mad-lib law happened to prevent you from wearing clothes with mixed fabrics, you wouldn't have a problem with that, but if that rule is instead based on a bible passage, it becomes horribly objectionable?

I thought you were equating the Mad-Lib law with the nonsense law, sorry. Absent a secular purpose, the law you describe above would still only serve a religious purpose, would it not?

"...if we had to sit down today and design a Constitution for our country, is this a feature that we would want to include?"

Ah, well, that's a much more interesting question, indeed.

(And, incidentally, I concluded shortly after posting the comment I posted that this is a reply to that it was not of the better comments I'd ever made, and wished I could withdraw it for a rewrite, as well, but that's not an option, of course; instead, I write this little note. :-))

Don't have an off-hand answer to your good question, though. May ponder a bit, although frankly I have a lot of other stuff on my plate, so I'll read the responses of others with interest.

I dunno -- can it be held to serve a religious purpose even when there's no reason to conclude from the drafting process that the legislature had such a purpose in mind? Perhaps.

Anyway, that's not my main question -- it's more like, given that there are all sorts of silly or anti-democratic or anti-libertarian reasons for legislators to pass laws, why do we want to carve out one particular set of reasons as especially forbidden? I was getting the sense that some commenters were operating with an analogy along the lines of "secular is to religious as rational is to irrational", and I don't think that's accurate.

"Why is this not deprecating religious moral intuition? Isn't religious instruction a moral duty according to the faith in question?"

Sure but religious instruction is a moral duty that is also an establishment of religion. In fact religious instruction for a particular sect may very well be the most classic case of establishment of religion.

My point is not that all possible moral intuitions derived from religion are constitutional. Many of them might conflict with the Constitution. If you had a religiously derived moral belief that the President should be a twenty-five year-old, you would be out of luck. The Constitution sets the minimum age for the President at 35 years. If you have a religiously derived moral belief that the government should build and maintain your church you are out of luck. The Constitution doesn't allow the government to do that. If you have a religiously derived moral intuition that the government should teach your doctrine youI are out of luck. The Constitution doesn't allow you to do that. But if you have a religiously derived moral intuition that the death penalty is wrong you can try to get your religiously derived moral intuition enacted into law. The Constitution doesn't bar laws against the death penalty. It doesn't care if your moral intuition against the death penalty comes from religion.

Isn't religious instruction a moral duty according to the faith in question?

There's a line that (IMHO) religious instruction ought not cross: that one can use faith to understand how the physical universe works, or even invalidate what others have learned using...other methods. Lately we have no sciendific recorded evidence of gravity, for example, giving the faithful a little leeway. If God were inclined to publicly, visibly play fast and loose with the laws of nature, just think of what He might accomplish for those who are ill, deformed, or just needing to lose a few pounds.

Sooner or later one's faith is going to bang up hard against reality, and if one elects to place one's bets on faith instead of reality, well, it's best to bid one's money a fond farewell early on. In fact, just send it on to me for safekeeping.

what He might accomplish for those who are ...just needing to lose a few pounds

If I were (insert pronoun here), I would probably end up just messing with the local gravity conditions occasionally, so as to make the person stand on the scales and be lighter, only to cruelly dash their hopes when standing on the scales when their spouse was there to verify. In fact, that precise situation makes me think there may be a God and he really doesn't like me...

kenB: "why do we want to carve out one particular set of reasons as especially forbidden? I was getting the sense that some commenters were operating with an analogy along the lines of "secular is to religious as rational is to irrational", and I don't think that's accurate."

Although many non-religious people do view religious as being irrational, many do not. And as a religious person who also believes himself to be rational (most of the time), I agree with you.

But, in terms of why one set of reasons is considered forbidden, they key issue would be if that is the only reason for a law to be enacted. It is not a question of moral intuition, the type that Sebastian refers to above. It would be a belief that a particular religion attempts to have enacted.

By enacting a law based upon a belief that is intrinsic to a religion, it is a form of establishment of that religion. There can be a law enacted that shares the same basis as a religion. The death penalty, for example, can be looked at both ways from a religious basis. However, there are also non-religious rationales for both sides of that issue.

There may be some moral truths that span all religions, and, in fact, many laws are based on those. But they also are, to some degree, based upon a concept of morality that extends beyond the realm of religion.

There are, however, some beliefs that may be intrinsic to a specific religion, i.e. the ban against adultery. But trying to pass a law against adultery based solely on the concept it is wrong from a religious base would not be appropriate.

BTW, I agree that some of the convoluted thinking behind some laws can cause one to scratch one's head.

Sebastian, I am glad to see a conservative that is willing to say publicly that one can be non-religious and still have values. After the 2004 election I was tired of all the talk about "values" and Republicans having a monopoly on them because they were more apt to go to church.

Hey Slart, could you take a gander at Benjamin Schwarz's "The Perils of Primacy" in the current Atlantic? First paragraphs only, unfortunately. (For the general audience: Schwarz argues that the US is on course to nuclear hegemony - we will be able to reliably take out the Russian and Chinese nukes in a first strike, and this fact will lead to less stability.) It's about three pages, you could scan it in a minute next time you're in a bookstore.

Slarti: actually, I think God can play a bit fast and loose with the laws of nature, by making miracles. (Walking on water, for instance.) I also think there's no problem in principle with having a religion that tells you, among other things, how the world works. It's just that if the evidence comes out differently, and there's no obvious error in the science that produced that evidence, any religion that does this has to accept one of two consequences:

(a) it is wrong (at least about the part that conflicts with science), or

(b) that when we use our intellects to try to understand how the world works, we fail. This has implications for our view of God and/or ourselves. Is God just fabricating misleading evidence on the fly? Then it's hard to see how he's not deceiving us. Is it that our intellects are somehow corrupt, and incapable not just of figuring out problems that are just beyond our capacities, but even of getting the right answer when we follow all the rules and do everything right. (If this were math, I'd say: it's not just that some math problems are insoluble by us; it's that even when we construct a completely valid proof, it's sometimes wrong.) Then, again, it's hard to see how God did not create us with really flawed powers of reasoning, in which case, again, he looks a lot like a deceiver.

If revelation told us how the world worked, and it was always right, then good for revelation. But by telling us things that science can check, it's placing either its own credibility or the morality of its God on the line, hostage to scientific investigation.

Others are clearly doing a better job of saying what I'm trying to say.

Sebastian Holsclaw: But if you have a religiously derived moral intuition that the death penalty is wrong you can try to get your religiously derived moral intuition enacted into law. The Constitution doesn't bar laws against the death penalty. It doesn't care if your moral intuition against the death penalty comes from religion.

Neither do I care. Opposition to the death penalty is not a solely religious cause. It is a cause that finds support among some people of faith, but which serves purposes, rational or not, that do not depend on divine authority. If a person's faith inspires her to support such a ban, what do I care? It is only when faith provides the ONLY reasonably discernible purpose for a law that it raises the Establishment Clause flag in my mind.

Just my opinion, but I'd say that it's the best of the three; they got better as they went along, and didn't have Jake Lloyd, and less and less Jar-Jar. Not to distract from everyone ignoring the Lemon test and restating it without acknowledging it.

"Opposition to the death penalty is not a solely religious cause. It is a cause that finds support among some people of faith, but which serves purposes, rational or not, that do not depend on divine authority. If a person's faith inspires her to support such a ban, what do I care? It is only when faith provides the ONLY reasonably discernible purpose for a law that it raises the Establishment Clause flag in my mind."

Right. But if we let judges play the game of "only reasonably discernible purpose for a law" I think we are asking for trouble.

The example which sparked the discussion is abortion--in which hilzoy suggested that there is no non-religious reason to ban early abortion. In her comment she suggests that opposition to early abortions is religious because it treats the case of a fetus who does not exhibit certain types of brain activity differently from a brain dead person who does not exhibit certain types of brain activity. I don't think it is inherently irrational to treat a human who is growing into his brain under a slightly different moral understanding for ending his life than a person who is dying and exhibits brain death. In the first instance if we do not intervene with medical treatment we will tend to end up with someone whom pretty much everyone recognizes as a human being fully deserving of human rights. In the second instance if we do not intervene with medical treatment we will tend to end up with someone whom pretty much everyone recognizes is dead. Drawing the two cases differently even if they both exhibit similar amounts of brain activity at a given moment is not inherently religious. It is inherently a moral judgment. It might be a moral judgment informed by religion for some. It might be a moral judgment informed by personal reflection for others. It might be a moral judgment informed by a desire not to look bad in front of your more caring friends for still others. The First Amendment doesn't denigrate the first kind of judgment and privilege the second and third kind of judgments.

Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [p613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.

Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion.

On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference.

[...]

We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion [p614] Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.

I don't understand why everyone keeps talking as if we're on a parallel world then the one we live in, where this is our (American, not meaning to imply we're all American here, of course) history and law and has been for decades. It's not a hypothetical in which "if we let"; we've let. For decades. What have been the bad results, specifically?

Lemon was about giving money to support religious education--a clear establishment question. Religious education is quite possibly the single most obvious establishment question past actually setting up a state religion. It wasn't about priviliging the moral intuitions of non-religious people in non-establishment contexts--like abortion, or the death penalty, or child labor laws, or even what we now call blue laws. Furthermore, Lemon didn't even turn on the secular purpose question. It turned on an "excessive entanglement" question. The judges just assumed that it was for a secular purpose. I think Lemon is a poorly decided decision, but even Lemon doesn't throw out a law on the secular purpose ground. My point to hilzoy, and I apologize if it wasn't clear, is that the throwing out laws if someone judges that they don't have a secular purpose is a dangerous idea for jurisprudence because trying to figure out secular vs. wholly non-secular is a ridiculously difficult problem when lots of people have their moral intuitions influenced by religion.

Asking me to point to the problem I have with that despite 35 years since the Lemon case is to miss my point. Lemon didn't throw out a law because it was non-secular. It threw out a law because Burger believed that giving support to a private religious school and trying to go through contortions to make sure they didn't spend the money on religious purposes created an excessive entanglement between church and state. He specifically says that he isn't overruling the law based on a lack of secular purpose.

Lemon doesn't stand for the proposition that hilzoy seems to be making.

For the general audience: Schwarz argues that the US is on course to nuclear hegemony - we will be able to reliably take out the Russian and Chinese nukes in a first strike, and this fact will lead to less stability.

This kind of thinking scares me. Fortunately, I really doubt we'd do a first-strike on India, for instance, unless they directly threatened us. Somehow. Haven't thought it through. If India, for instance, arbitrarily nuked one of our aircraft carriers, perhaps, or North Korea launched one on Honolulu. Again, I haven't thought about this all that much, but basically not much has changed in the balance of arms in the last decade. Aside from perceptions, maybe: we're still the clear frontrunner where it comes to any decent gauge of offensive weapons, and at least holding our own in defensive weapons. I can't see us doing a preemptive strike on mainland China unless they start going all hey-that's-a-nice-hemisphere-you've-got-it'd-be-a-shame-if-anything-happened-to-it on us.

Slarti: actually, I think God can play a bit fast and loose with the laws of nature, by making miracles.

Sure, just not where there are scientists waiting to record them. There could be miracles happening all the time, in a place and time that no one happens to be observing. And if one defines miracles as something like "that which we do not understand", certainly they're happening constantly. Not discounting actual miracles, mind you, but Jesus hasn't showed up to do any in a couple of millenia.

But by telling us things that science can check, it's placing either its own credibility or the morality of its God on the line, hostage to scientific investigation.

There's more than one reference in the Bible to the notion that God doesn't always speak to us in a way that's immediately understandable, which is either Mystery or a convenient way for the Bible to avoid the casual fact-check. I go with Mystery, myself.

There are secular people (Randians, for instance) who have moral intuitions at least as strong as those of any fundamentalist and they claim their opinions are based on reason. They claim it rather vehemently, in fact. But I don't find their intuitions any more plausible than those of fundamentalists. Even if you try to be perfectly logical in your arguments you've got to ground your moral reasoning in some set of axioms. Unfortunately people don't seem to agree on them.

To me, secular liberals, religious believers of every political stripe, and Randians are all in the same boat--we've all got to deal with people who clearly aren't thinking straight.

Donald speaks for me -- I wish I could've summed my thoughts up so clearly.

Anarch, I see you're an originalist when it comes to deciding what the topic of a thread is. Clearly, the current topic in this thread is the relationship among religion, morality, and the law, regardless of the intent of the founding poster.

slarti: please remember that mass is different from weight. tinkering with the gravitional constant will do nothing to reduce your mass.

Groovy. This is, however, something I have never forgotten. Getting God into the weight-reduction business would, IMO, require a miracle or two, not least of which would be the parsing of "weight reduction" into "getting rid of excess fat".

the miracle you need is a kind of reverse loaves-and-fishes. you eat all you want and lose mass.

Being a former Catholic, I've lost all the Mass I wanted to. The kind of miracle you described, though...well, it presumes a stopping point somewhere well to this side of Death.

Huh. I'm not used to all this agreement. What have all you people done with the regulars I normally read, joyfully tearing each other apart? I should maybe go visit the Hamas thread and reacquaint myself with the way things normally are around here. Though come to think of it, personality conflicts aside, there was an uncharacteristic amount of agreement over there too.

But re-reading my post I wanted to add something, because it could have been taken as a kind of moral relativism. But, like Sebastian, I'm not a moral relativist. I agree with C. S. Lewis in "The Abolition of Man", where he argues that most people in most cultures agree on most points of morality. And where they disagree it's often on which moral principle takes precedence in a given situation. Like in the abortion debate. About which I have absolutely nothing to say. It's pleasant being agreed with and I don't want to spoil it and besides, I really don't have anything to say.

Though mine also isn't religiously based, and I likely would rapidly be forced to admit that once reduced to some axioms, I'd be justifying a lot of it with "because that's what I believe because that's the world I desire to live in," because I have no formal philosophical education whatever, and no particularly in-depth self-education in that area. That is, what little I have is quite patchy, and fairly shallow.

I'm happy to let locals customs be local customs. Up to a point. But then I get all "no, I believe that's wrong," when it comes to, say, cliterectomy. (I'd just as soon not reopen the issue of male circumcision, but I can't stop anyone.)

What about a SOTU open thread? Was the Dems' backhanded cheer at the line "Congress failed to enact Social Security reform" the highlight of the evening? Or was it Bush opining that America is addicted to oil? (Well, the first step IS admitting you have a problem...)

I could comment on a bunch of other stuff, but this has to be the greatest biggest fattest, most utterly blatant straight out lie: "put men like bin Laden and Zarqawi in charge of a strategic country …"

Yeah, right. No chance. Not a threat. Never going to happen. Lie, lie, lie, lie.